Sunday, September 2, 2018

GateHouse: A call to preserve judicial independence

James Madison wrote that the “accumulation of all powers,
legislative, executive, and judiciary in the same hands ... may justly be
pronounced the very definition of tyranny.”

In America we have three separate but co-equal branches of
government — executive, legislative and judicial. The founding fathers created
a system of checks and balances that require a certain level of mutual respect.

The judicial branch must be independent and not be
influenced by bias or politics. To suggest otherwise undermines the court’s
independence. Unfortunately, the courts are under attack in this country.

In June 2016, then-candidate Donald Trump said that U.S.
District Judge Gonzalo Curiel of the Southern District of California could not
be impartial when deciding the highly contested future of Trump University
because of his “Mexican heritage.” His vitriol toward the judiciary has been
nonstop ever since.

Charles Geyh, an Indiana University law professor and expert
on judicial conduct and ethics, told the Washington Post that such bravado is
sending a dangerous message, “As the leader of the free world, I should be able
to do what I choose. The court shouldn’t be able to get involved.”

Geyh said Trump’s attitude shows a lack of understanding of
the equal roles of the three branches of government, specifically of the
judiciary’s job to serve as a check on the executive branch.

Such attacks upon judges and judicial decisions undermines
the legitimacy of the courts. The attacks are not limited to Trump. Recently,
Pennsylvania Governor Tom Wolf asked the state’s Judicial Conduct Board to
review a decision by a county judge who let a father have unsupervised visits
with his child before the father beat the child to death and killed himself.

The child’s relatives are calling for the judge’s removal,
and have a petition with 37,000 signatures to bolster their efforts. Not unlike
the successful effort of Californians who voted to recall the judge who
sentenced a former Stanford University swimmer convicted of sexual assault.

Santa Clara County, California Judge Aaron Persky was
removed from office after he sentenced Brock Turner to six months in jail,
after prosecutors argued for a 7-year prison sentence, for sexually assaulting
a young woman on campus.

Jules Epstein a law professor at Temple University Law
School recently wrote in the Philadelphia Inquirer, “We live in a country where
the judiciary is under attack ... Americans want and need judges to make tough
decisions without looking over their shoulders.”

Samuel Stretton, an ethics lawyer told the Inquirer, “You
don’t get judicial discipline just because a judge makes a decision that turns
out to be wrong, as long as it was made fairly, honestly and based on the
record.”

The sad truth is that we have let politicians put their own
personal interests before the interests of the nation. I’m not suggesting blind
adherence to the courts. There is always room to challenge an unjust decision.

The place for that challenge is not at a press conference or
on Twitter. Judicial opinions can be reviewed. Legislation can be enacted and
an executive can use his or her authority to veto, issue executive orders or
use the bully pulpit to rally support for change.

A governor or president’s disrespect and contempt for one of
the bedrock principles of democracy demonstrates why an independent judicial
branch is essential.

The executive branch should not undermine the authority of
the judicial branch, nor should the judicial branch circumvent the
constitutional foundation of this nation. Our system of checks and balances is
a shining example of democracy.

This 231 year experiment in governance works best when each
branch accords the others a certain level of deference — not blind faith — but
dignity and respect.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.